How to be a Terrorist Without Really Trying: A Common Law Test for Determining Who is "Part Of" a Terrorist Group

Abstract

This Comment critiques the D.C. Circuit Court of Appeals’s practice of utilizing a case-by-case approach to determining whether an individual detained at the military facilities of Guantanamo Bay, Cuba is considered “part of” the Taliban or al-Qaeda. The 2010 case of Bensayah v. Obama was among the first to grant a writ of habeas corpus to a Guantanamo detainee and therefore acts as an outer boundary in determining a more concrete standard for determining who is “part of” the Taliban or al-Qaeda. In articulating such a standard, this Comment proceeds first by analyzing previous case law and examining the four indicia commonly used to determine a detainee’s status. In light of this case law, including the recent Bensayah decision, this Comment then proposes a balancing test to replace the current case-by-case method as a more reliable and predictable means of determining whether a detainee is “part of” the Taliban or al-Qaeda.